Federal Bar Update: Rule changes impact authentication

New rules

Effective Dec. 1, several federal rule changes took effect. Fortunately, this batch of amendments was modest.

The only change in the Federal Rules of Civil Procedure was to Rule 4(m) addressing the 90-day limit for service. The last sentence of the Rule was amended to add: This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

Rule 71.1(d)(3)(A) addresses personal service in condemnation proceedings. This amendment thus will not impact most federal practitioners.

In the Federal Rules of Evidence, Rule 803’s “ancient documents” exception to the hearsay rule was amended, as follows:

Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old that was prepared before Jan. 1, 1998, and whose authenticity is established.

This change from the prior 20-year provision to a date certain, Jan. 1, 1998, was driven by the growth of electronically stored information. As the Committee Notes explain: “The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before Jan. 1, 1998. The Committee has determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI).” The Committee added, “Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.”

Meanwhile, Rule 902 on self-authentication of records was simplified for certain records, as follows:

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

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(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

The Committee Notes explain the reasoning for the change: “The amendment sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing a witness to authenticate an item of electronic evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented.”

Lastly, the Rule 4 of the Federal Rules of Appellate Procedure had a modest amendment, as follows:

Rule 4. Appeal as of Right—When Taken

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(a)(4)(B)(iii) No additional fee is required to file an amended notice.

On the Local Rules front, the Southern District of Indiana had several minor Local Rule changes that took effect January 1. Local Rule 5-12 was modified for Social Security appeals. Local Rule 87(f) was amended to provide that recruited counsel for indigent litigants may negotiate fair and reasonable fee agreements, with counsel required to file with the Court within 28 days of execution of such an agreement a Notice of Fee Agreement. The Notice may be filed ex parte.•

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• John Maley — [email protected] — is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90. The opinions expressed are those of the author.